July 2011 Updates

“America is a large, friendly dog in a very small room. Every time it wags its tail, it knocks over a chair.” – Arnold Toynbee

McCallister v. DHSMV, 18 Fla. L. Weekly Supp. 565 (9th Jud. Cir., Mar 25, 2011): Writ of Certiorari Denied – Here’s what you need to take from this case: McAllister correctly asserts that any statement made to a law enforcement officer for the purpose of completing an accident report is not admissible as evidence against the speaker unless the officer first gave the speaker Miranda warnings and informed him that he is the subject of a criminal investigation. See State v. Marshall, 695 So. 2d 686, 686 (Fla. 1997) [22 Fla. L. Weekly S308b]; see also Dep’t of Highway Safety & Motor Vehicles v. Perry, 702 So. 2d 294, 295-96 (Fla. 5th DCA 1997) [22 Fla. L. Weekly D2796a] (holding that the accident report privilege applies to administrative proceedings). And; In the absence of binding precedent that is so directly on point as to remove all doubt of the sure and definite resolution to the present issue, we review the long-established definition of the “competent substantial evidence” standard. “Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred.” De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). Finally; The competent substantial evidence standard does not require that the evidence establish the fact at issue. Rather, the appropriate standard of review requires that the evidence establish a substantial basis of fact from which the fact at issue can be reasonably inferred, and that a reasonable mind would accept it as adequate to support the conclusion reached.

Estrada v. State, 18 Fla. L. Weekly Supp. 579 (11th Jud. Cir., Apr 18, 2011): Defense Appeal, reversed – Motion to suppress refusal to take urine test was denied. This appeal takes place after a trial during which the state used the refusal as a key piece of evidence (defendant blew .071 and .068 but refused urine). The appellate court found that “Sergeant Sardina was not qualified to make determinations of whether or not the Defendant is under the influence of anything other than alcohol.” The Court went on to point out “[i]n order to request a driver submit to a urine test, the officers must ‘[have] reasonable cause to believe such person was driving or was in actual physical control of a motor vehicle within this state while under the influence of chemical substances or controlled substances.’ Additionally, ‘Because it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable . . . these intrusions must be deemed searches under the Fourth Amendment.’ Skinner v. Ry. Labor Executive Ass’n, 489 U.S. 602, 617 (1989). Therefore they reversed it but I think we may see this case in the Weekly sometime in the future.